dotCommonweal

Not taking "Yes" for an answer?

The case of the Obama administration v. the Little Sisters of the Poor (the theatrical sound of it is almost worthy of a Nast cartoon) is one of the many, many court cases over the HHS contraception mandate -- some of which (specifically, the issue of for-profit companies with religious owners) will be sorted out this term by the Supreme Court.

The fate of the faith-based cases will likely come later, as they are still making their way up through the appeals courts. But the issue of the Little Sisters of the Poor is front and center since Justice Sonia Sotomayor issued a New Year's Eve injunction delaying enforcement of the mandate so the nuns would not have to comply.

The sisters operate a network of nursing homes around the world for the poor. It's not clear how many employees they have--their counsel, the Becket Fund, hasn't supplied that information)--but they don't want to provide contraception coverage for them and they say that the administration's much-debated (on this blog and elsewhere) accommodation for such religious entities is, to say the least, inaedquate.

The accommodation requires that a faith-based group like the Little Sisters (or the University of Notre Dame or a Catholic hospital etc) sign a form certifying their religious status and their objections and then a third-part administrator (TPA) unconnected to the religious entity will contact and contract with (if so desired) the employee to provide the contraception coverage. There is no payment from the religious employer and no other entanglement.

The Little Sisters and others say instead that signing the form is a "permission slip" that means they authorize someone else to undertake an immoral action, which would make the nuns culpable.

Lots of groups assert the same thing, but the unusual aspect of the Little Sisters' case is that their own insurer, Christian Brothers Services, is exempt from having to provide the coverage as well. So neither the Little Sisters nor any TPA will provide the coverage.

As Solicitor General Donald B. Verrilli Jr. wrote to the high court in response to Sotomayor's injunction:

“With the stroke of their own pen, applicants can secure for themselves the relief they seek from this Court — an exemption from the requirements of the contraceptive-coverage provision — and the employer-applicants’ employees (and their family members) will not receive contraceptive coverage through the plan’s third-party administrator either."

Yet the sisters' lawyers at the Becket Fund (which is leading much of the legal action against the mandate) confounded reporters during a conference call last week because they could not explain what risk the nuns were running if both they and their insurer did not have to do anything that would provide or even trigger any contraceptive coverage.

After repeated requests to explain, Becket Fund attorney Eric Rassbach finally said of the administration: “I think they’re just trying to fool the press, frankly."

I know there's no love lost for the White House, but to claim that they are lying to the Supreme Court and will turn around and fine the sisters seems more than a stretch. The administration would get hammered if it did something like that. Moreover, the plain language of the regulations say what Verilli says -- that neither the sisters nor their insurer can provide contracepive coverage. Michael Hitzik at the LA Times deconstructs it all quite well.

I haven't seen anything from the nuns' defenders that really clarifies the situation. At Mirror of Justice, posts by Kevin Walsh here and here don't address this issue and merely assert that the accommodation (which isn't the issue here) is a "permission slip" for all manner of evil.

So two questions:

One, if neither the nuns nor their insurer has to provide contraception coverage, what case do they have?

And two, on the secondary point that does regard many other cases, how is signing the statement that one has a religious objection and therefor an exemption a "permission slip"?

Over at Patheos, Rebecca Hamilton, a Catholic and Oklahoma state legislator, compares signing the request to opt out of the mandate to "hiring a hit man to kill your neighbor." Really?

At NCR, Michael Sean Winters calls this kind of argument the "big lie," and he makes the analogy to conscientious objector status. When you sign something saying you don't want to fight in a war, well, someone else has to go in your place. I might add that giving your employees a paycheck is a permission slip knowing that they can then do all manner of evil with the funds.

I have no love for the mandate at all and think it could have been done much differently or not at all. And I have no clue whether the Supremes will buy either the for-profit arguments or the arguments by the Little Sisters or other faith-based organizations when they do reach the high court. (This LA Times piece wonders if the lack of a SCOTUS decision on the injunction reflects a divided court.)

But the arguments being made against the mandate, especially in the case of the Little Sisters of the Poor, seem to be stretching Catholic teaching and legal reasoning beyond the breaking point.

Comments

A common practice, as I understand these things, is that employer group insurance is handled by a sort of conglomerate of three entities: the employer, the insurance company and a third party administrator (TPA). The conglomerate is established via contracts, i.e. the insurer and the TPA each sign a contract with the employer.

So here's my confusion: you write, "The accommodation requires that a faith-based group like the Little Sisters (or the University of Notre Dame or a Catholic hospital etc) sign a form certifying their religious status and their objections and then a third-part administrator (TPA) unconnected to the religious entity will contact and contract with (if so desired) the employee to provide the contraception coverage.

... and that seems clear enough: under the accommodation, responsibility for fulfilling the mandate gets passed to the TPA. You also write, "the unusual aspect of the Little Sisters' case is that their own insurer, Christian Brothers Services, is exempt from having to provide the coverage as well. So neither the Little Sisters nor any TPA will provide the coverage."

I guess the kernel of my confusion is: which role, insurer or TPA, is the Christian Brothers in this scenario? Or is Christian Brothers handling both roles (as sometimes happens, I believe)? If Christian Brothers is the insurer but not the TPA, then presumably the TPA is another party, whose name we haven't learned yet, who will have to fulfill the contraceptive mandate, pursuant to the accommodation rules. If Christian Brothers is the TPA, then ... what? If Christian Brothers is the TPA but is exempt from doing what TPAs are supposed to do in these accommodation scenarios, then who gets 'stuck' with fulfilling the mandate?

Jim, I'm no expert, and my confusion I'm sure exceeds yours most times. The key point (I think) is that the sister's health pln doesn't fall under the ERISA statutes that the mandate operates through. So there's no TPA, no contraception coverage.

My personal view is that medical coverage is part of the workers remuneration and therefore the employer has no right to restrict workers right to medical care according to the workers own conscience. The danger here is for the Church to get into coercing the conscience of others. It seems to me that the Obama administration is in accord with Catholic doctrine in enforcing the workers right to freedom of conscience.

Is the employer's already established insurance provider necessarily the only possible third party?

In this case, the employer's already established insurance provider is exempt on religious grounds.

But does this insurance provider's exemption rule out the possibility of any other third party (e.g., another insurance provider) becoming involved and contacting the employer's employees about contraception insurance coverage?

I am aware that these questions do not directly address the issue of the employer refusing to sign the certification.

I've never understood the theory of religious liberty that is behind these lawsuits. It seems to me if we adopt these standards, I should be able to veto any action by the government that I find immoral because I object to my taxes paying for it.

Do you have any legal authority for the claim that the Little Sisters' position is "stretching...legal reasoning beyond the breaking point"? You don't cite to any legal authority in this post. Yet you make a legal claim.

Here's another set of questions. What is the purpose of compelling the Little Sisters to sign a certification, and to designate a provider of contraceptive products, if such certification and designation will not result in the provision of those products? Why not simply accommodate the Little Sisters without making them sign the certification and designation? Why compel the Little Sisters to certify and designate--actions which themselves have legal force irrespective of what the TPA will or will not do? Far from having a compelling interest in forcing the Little Sisters to sign and designate (which is the statutory standard), it appears that the government has no interest at all in having them certify and designate. It seems irrational to compel people to do something when you have no interest in having them do it other than demonstrating your power to compel them.

No, Marc, here's the question: What is the injury? What is their standing if their health plan is exempt, which it is, because it's a "church plan"? In other words, even if the Little Sisters self-certify, their employees still won't get contraception coverage because their health plan is itself exempt. And if they don't, what will happen? The Obama administration, whose lawyers keep saying the plan is exempt, would fine them for not signing the form that would trigger an accommodation that doesn't apply to them?

We all know the Obama administration's position. But you seem confused about how the self-certification process came to be. It was supposed to allow Catholic groups to say no, we won't include this in the health plan we contract for. It was supposed to make it easy for objecting groups to explicitly reject the controversial coverage while also fulfilling the Obama administration's policy goal of allowing employees of such groups--many of whom are not Catholic (or of the same religious tradition as their employers)--to receive coverage from a third party. The whole point was to try to fit this into Catholic moral reasoning. Time to use some.

The injury is the compulsion to sign the certification and designation. That form itself has legal effect. The form is a directive. What the TPA then does or does not do is a separate matter. Indeed, some TPAs may very well provide these products, though I agree that I do not believe that the TPA of the Little Sisters of the Poor will.

But let me turn the question around. Normally we require some reason for government action. We demand that government action at the very least satisfy a rational basis standard of review. What is the rational basis for compelling the Little Sisters of the Poor to sign a certification and designation if, as you say, ultimately it will accomplish absolutely nothing? A government policy as to which it has *no* interest is irrational. Or, if it does have an interest in forcing the Little Sisters to certify and designate, what is its interest? Not the provision of contraceptive products, in this case. So what, then?

I'm also afraid I disagree with your view about what was "supposed" to happen. What was supposed to happen is for the government not to make arbitrary distinctions among non-profit religious groups, offering different levels of exemption and compulsion as it chose. Even now, it would be perfectly simple ("the stroke of a pen" comes to mind) for the government to exempt groups like the Little Sisters, offering it the same exemption as it offers other nonprofit organizations. But failing that, the government could actually accommodate the Little Sisters in the way it wants *without* making it certify and designate. Why not do that with the stroke of a pen?

That seems pretty thin, Marc. First, the government makes all kinds of distinctions for tax purposes. It tried to incorporate some of those into the HHS regulations following complaints from critics like you. Those distinctions are not arbitrary. Because, second, there is a difference between a diocese and a hospital. The latter does not hire or serve primary co-religionists. Indeed, many of their employees have different religious commitments, or none at all. This is partly why the Supreme Court found in U.S. vs. Lee (1982) that "when followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes that are binding on others in that activity."

Thanks for the response, Grant, but I do not think you have answered my question (though you raise other interesting issues as to which I also disagree). The fact that the government makes all kinds of distinctions for tax purposes does not answer the problem of a putatively irrational policy, which is what we are by hypothesis discussing in the case of the Little Sisters of the Poor. If church plans are exempt from ERISA enforcement, and so the certification and designation of groups like the Little Sisters will result in the vindication of absolutely no government interest as to the Little Sisters, then what is the rational basis for compelling groups like the Little Sisters to certify and designate? RFRA requires an analysis of the specific government interest to be advanced as to the claimant before the court. It does not paper over the absence of such an interest by adverting to general bureaucratic efficiencies and distinctions in an overall legislative scheme. So what is the interest of the government in forcing the Little SIsters to sign a certification and designation as to which it concedes that no provision of contraceptive products and services will result?

I also disagree with your reading of Lee, which dealt with a context quite different from this one and much closer to taxation (social security). But for present discussion of the Little Sisters' case and other church plan cases like it, it's also beside the point.

At any rate, and not for lack of interest or gratitude for the engagement (only of time) I will now bow out. I appreciate the exchange.

What the sisters are required to do is to report to the government information about the benefits their employees receive. The fact that the government uses this information to determine the eligibility of various benefits, including contraception, is irrelevant to the religious freedom of the sisters.

The sisters can use this reporting as nonviolent resistance to contraception, but it is likely to backfire as most people will see it as them just being difficult rather suffering from a previously ignored injustice.

Marc, I suspect Grant and others have addressed many of your points, but let me reitrate and elaborate:

One, thing, as for citing a "legal authority," I'm not sure what you mean ... I cited the Solicitor General. What were you thinking of? There are many other legal opinions that agree with Verrilli. I think logic as much as legal authority is the context here in any case.

As for "compelling" the sisters to sign something, I don't understand the problem. This accommodation and/or exemption is something the sisters (and others) asked for. Why is it then a compulsion to give it to them?

Moreover, why is it a "burden" or "compulsion" when by accepting this exemption they are accomplishing a good thing, by their own lights, which is barring their employees from receiving contraception coverage?

I'm glad that we agree that in fact there is no injury suffered here by the Little Sisters because they will not be providing or accessory to contraception coverage. But if there is no injury -- and in fact a "good" achieved that the sisters in fact requested -- why is signing the form problematic?

Groups like this one that operate nursing homes around the world sign all kinds of forms all the time. Many have to show they are nonprofits or that they comply with local health regulations etc. Given that this one has no moral effect for them what is the issue? Why is this different?

even if the Little Sisters self-certify, their employees still won't get contraception coverage because their health plan is itself exempt. And if they don't, what will happen? The Obama administration, whose lawyers keep saying the plan is exempt, would fine them for not signing the form that would trigger an accommodation that doesn't apply to them?

Is that in fact what will happen if the Little Sisters don't prevail and don't sign the form - the Obama Administration will fine them (possibly substantially) for not signing the form? I apologize if I'm behind most of the class on this, but I'm just trying to get my arms around the facts.

even if the Little Sisters self-certify, their employees still won't get contraception coverage because their health plan is itself exempt.

Again, sorry if I'm not following the complexities. The reason "their health plan is itself exempt" is not because of the Little Sisters' status as an exempt religious org (under the contraception mandate, it's not exempt), but because its insurer (or is it TPA?), Christian Brothers Services, is exempt under some separate provision of the accommodation that applies to religious insurers. Is that correct?

If, for whatever reason, next year the Little Sisters decide to drop the Christian Brothers and switch to Blue Cross/Blue Shield, then it would no longer be the case that "even if the Little Sisters self-certify, their employees still won't get contraception coverage". Is that also correct?

You wrote, "What was supposed to happen is for the government not to make arbitrary distinctions among non-profit religious groups, offering different levels of exemption and compulsion as it chose." The distinctions are not arbitrary, and I explained why. You haven't explained why you disagree.

You also wrote, "If church plans are exempt from ERISA enforcement, and so the certification and designation of groups like the Little Sisters will result in the vindication of absolutely no government interest as to the Little Sisters, then what is the rational basis for compelling groups like the Little Sisters to certify and designate?" The point is that their case seems unlike the others because they do not have to contract for contraception services and their health-plan administrator cannot be made to provide it.

RFRA, you instruct, "does not paper over the absence of such an interest by adverting to general bureaucratic efficiencies and distinctions in an overall legislative scheme." Was I papering over that? I thought I was trying to get you to tell me how the Little Sisters could be injured by signing a form that doesn't apply to them. After all, they brought the suit. Not the U.S. government.

This issue has turned truly ludicrous. If I asked you, "Will you help me kill Jack"?" and you answered, "No", have you helped me kill Jack? OF COURSE NOT!!!!! Well, when Obama says to the Sisters, "Will you help me provide contraceptives to your employees? If not, just sign this paper". and the Sisters check "No" and sign it, they are NOT helping anyone contracept. And the notion that they're giving permission would be laugh-out-loud funny if it weren't so dumb. And here I thought the Becket Fund had some really bright lawyers. Sheesh.

I'll remind you guys that I was the first one around here to defend the bishops when they said their freedom of religion was being violated when they were ordered to provide the contraceptives. But this another issue entirely, or, I should say a non-issue. Shame on the Becket Fund, making those great ladies look hysterical. They should be sued for malpractice they're giving such nonsensical advice. Can't wait to see what Chief Justice Roberts or Scalia says about this, if they pay it any attention at all.

The *only* thing the Sisters are being compelled to do is answer the question, "Will you provide contraceptives for your employees?" The Beckets are complaining that Obama/the government is asking the Sister a question. What eejits.

i think it is badly designed. The Sisters sign at the bottom of the first page to certify that they qualify for the accomodation.

The design mistake is that the box on page 2 tells the TPA what the law requires it to do if the employer notifies it that it is qualified to exclude contraception from the plan.

This is a government-supplied form. I suppose that whoever designed the form thought that it would be helpful for the government to use the empty space on the back of the form to remind the TPA of what the regulations require it to do if the employer is qualified to exclude contraception.

The Sisters argue that if they sign the form and send it to the TPA, they are not just certifying that they are exempt, but are also directing the TPA to do what the regulations mentioned on page 2 require.

That's not their only issue, but I think that one could be resolved if the government reissued the form without the "Notice to Third-Party Administrators of Self-Insured Health Plans" on the back.

The *only* thing the Sisters are being compelled to do is answer the question, "Will you provide contraceptives for your employees?"

Ann - I don't say you're wrong. But there might be a precedent within the church for the sort of moral analysis that I think the Little Sisters and the Becket Fund are making.

During John Paul II's pontificate, Rome once ordered the Catholic Church in Germany to stop providing counseling to women seeking an abortion. The law there required that, before a woman could get an abortion, she was required to attend a counseling session with a religious organization. Women who attended the sessions sponsored by the church were (naturally) counseled not to have an abortion. At the end of the session, the church counselor would give the woman a certificate of proof that she had met the legal requirement. If the woman decided to go forward with the abortion, she would go to the abortion provider and present the piece of paper from the church. Rome's view was that, even though the church was counseling against getting an abortion, in effect it was part of the process of procuring an abortion. For all practical purposes (as Rome analyzed it) the church counseling sessions were a hoop that had to be jumped through, a checkbox that had to be checked off, in order to get an abortion. The church had allowed itself to be made a part of a structure of sin. It made the church a collaborator in the process - even though it was counseling against the very thing that was the end to which the process was directed.

I think the Little Sisters of the Poor could claim that there is a parallel here. That innocuous little form it is being asked to sign, the very form that would seem to wash the religious order's hands of the procurement and distribution of contraceptives, is in fact the trigger for the procurement and distribution of contraceptives. It is the instigating event in the chain of events. Without that paper, the women could not get free contraceptives. And it is the church that is pulling the trigger.

I am not necessarily endorsing this line of thought. Critiques of it have been made here, and Rome's decision with regard to abortions in Germany was also criticized at the time. I don't think the moral analysis in either case is straightforward.

I think this expresses a concern expressed many times by people who disagree with the Catholic position: If the Church can get away with it, it will try to impose its morality on others, like it or not. Shariah Law, anyone?

Suppose we look at this from the opposite side: if the sisters do nothing, will they be subject to penalties? I think the answer is yes. If that's the case, then they are being coerced by penalties to sign a form because that form triggers an obligation to provide something that without their signature would not be provided. Instead the penalty would be assessed AND there would be no contraceptive or abortive services provided. Seems to me like their signature is what causes the services, no ifs, ands, or buts.

Bad news, folks: I am going to Hell. After wondering about it for months, I checked this morning and discovered my retiree health benefits from my last employer include contraceptive coverage. I assume I always had it in the coverage while I was working as well.

Does it help if I never used it? Apparently not. The Little Sisters of the Poor and the Becket Fund deem it a no-no for Catholics even to refuse such coverage. I suppose I could have done that -- refused and found another job. But anywhere I went there would have been an employer ready to force contraceptive coverage down my throat.

The only salvation I can see for myself is the Becket Fund's unstated premise that the employer is the actual moral agent, and the employee only a subject. As a subject, whatever I got wouldn't have been my fault, huh? No?

The nuns feell that signing a form taints them. However by hiring lay emplyees they have a responsibility to them. In that sense they "tainted" themselves by hiring lay people to provide services for them knowing these lay peple may not subscribe to the nun's religious conscience, creating a moral responsibility. That responsibility includes adherence to the legal and just provison called Obamacare, meaning that the employer has to provide health insurance for its employees. The nuns have the relgious exemption status which recognizes freedon of religion. That cannot mean that religious exemption extends to abrogating one's responsibility to one's employees. No one forced the nuns to hire lay people. If they choose to do so they must comply with legal and JUST responsibility of seeing that their employees get proper coverage. In this case, by signing the appropriate forms. A conscientious objector has to initiate his/her claim by filling out forms. A conscientious objector may not want to participate in the process but abstention only results in exclusion from exemption A conscientious objector speaks only for his/'her own conscience, not anyone else's. The nuns are free to believe whatever they want and to practice their relgion including exempting themselves from being party to paying for contraception. That does not mean that they can speak for their emplyees or that they can wash their hands of their responsibilty as employers to ensure that employees have access to health insurane as other employees of a large companies do. The employee is entitled to his/her contraceptive coverage.

Bruce, signing the form does not authorize anything the nuns object to. Their insurer does not have to and wil not provide contraception coverage. That's the point.

Jim P: Excellent example from Germany, one I've always been fascinated by. I tended to agree with the German bishops, whose moral reasoning argued that the counseling was legitimate under the Catholic moral tradition. The system also helped prevent abortions. Another German bishop, one Cardinal Ratzinger, disagreed, and of course he had the throw weight behind him.

So in the end the church stopped counseling women in that system, and as a result there was one less way to stop abortions. But the church remained morally pure. I guess...

The problem with the German analogy in this case is that by signing the certification the nuns do not endorse providing something; nothing sinful happens.

Bruce, I don't know if exempt institutions have to sign anything for this regulation but they will have to prove they are exempt -- and they have to sign all sorts of other documents related to their status vis-a-vis the IRS etc. If this entire controversy comes down to whether the sisters sign a standard issue government form, of the sort they and church organizations sign gazillions of times a year, and which does nothing, then we have truly approached the absurd. How can you say that signing one form is suddenly a form of persecution when you sign untold number of other government forms without protest?

It's not a human right.It is a legal right. Give unto Caesar what is Caesar's. If you don't want to give to Caesar then stop signing tax exempt forms. See how far that gets you.Caesar has determined that people need health care coverage and that unfortunately for us christians includes contarceptive coverage.That form gives Caesar what is necessary to get coverage to the nuns' emplyees who may want such coverage,without them having to jump though more hoops then other people workng for large companies do.it's called equaliy under the law.Without the forn the emyployes get discriminated against as they have to fend for themselves on the exhanges simply becaue they work for ths company.

Because signing this particular form presents a moral issue that the others do not. Tax forms fall under 'give to cesear what is cesears' and so are fundamentally different.

So, for a hypothetical example, if I was a member of a persecuted group, I might be very happy to sign all manner of government forms for drivers license, taxes, etc, etc, but highly object and maybe even lie, if asked to sign a form that even implicitly gave up my group identity. The point is simple, not all forms are the same, so your argument fails.

The implicit assumption of many posters on this site, and explicitly stated by some, is that todays women need contraception and abortion and they need it provided for free. That is, to put it charitably, highly debateable. But let me ask this question: until passage of the ACA, this was not an issue at all in our society, the entire society seemed to function well without real dissension over contraception. Everyone made their free choices and we all got along. Now, the US government has interjected itself into the issue, and created a controversy which did not previously exist. Since government exists to help us all get along for the common good, and here that government has acted in a way which explicitly contradicts its basic charge, why does anyone support its action? And given that the regulation which the government designed fails to work because it didnt understand its own laws (ERISA and church plans), how can anyone support its actions?

Pope Fancis tells the clergy that they need to mingle with the smelly sheep. These nuns have done that but now they want to pretend that their sheep don't smell.They're disingenuous.

No, they're not. The Little Sisters of the Poor offer a service to lay and ordained people that few others are willing to provide. They are not educated in the way many sisters are, and they are simple in the best sense of the word. Before denouncing these great women, it might be a good idea to learn something about their history, their training, their customs, etc.

A few points: there was a time, not long ago, when they went begging, with baskets, to support the old people in their care. There was a time, not long ago, when they were not allowed to know each other's family names. Etc., etc. They are vulnerable to those upon whose approbation they depend. If those who are their superiors decide they would be useful tools in the battle against Obama, they obey, probably with little knowledge or understanding of what's going on.

When I went to the Becket website and saw the groups that that they have defended and are defending vs. the ACA, e.g., dioceses, universities, businesses, etc. I began to wonder if perhaps the Little Sisters of the Poor are being used. Their name and mission sure do tug at the heart strings.

by signing the certification the nuns do not endorse providing something; nothing sinful happens.

Right. I'm still puzzled :-).

I also haven't figured out yet exactly how ERISA fits into this story. I believe ERISA sets rules for employee pensions, so I'm not sure what the connection is between Obamacare and ERISA. Does the mandate and accommodation only apply to employers to whom ERISA regulations would apply in the event they establish an employee pension? If that is the case, and if the Little SIsters are exempt from ERISA requirements, then does it even matter who their insurer and/or TPA are?

Bruce, this may actually be more akin to a tax given that the Supremes (well, Roberts) have ruled the individual mandate a tax.

But the issue here is that since there is no moral effect in signing the form what is the injury?

Moreover, as for the matter of their identity -- which I don't think is necessarily relevant legally speaking -- I don't know how this compromises their Catholic identity in any way. For one thing, it is an exemption they asked for in order to preserve their Catholic standing. And by going through this process they are in fact broadcasting their Catholic bona fides, their opposition to contraception -- not compromising it.

I'm starting to think the Little Sisters have a point, although I think the government could fix the problem by rewriting the regulations.

How i had understood the accomodation worked in the case of self-insured plans is:

1. Most self-insured plans already have a third-party administrator (TPA) who processes claims and pays them using the employer's money.

2. If the employer (here the Little SIsters) qualifies for the accomodation, it fills out a certification form and sends a copy to the TPA telling it that no contraceptives are to be paid for under its plan.

3. Without any involvement by the little Sisters, the government independently directs the TPA to pay for contraceptives and be reimbursed by the government.

The problem I see now, is that the regulations are written so that the deal is not off to the side between the TPA and the government, but seems to be triggered by the form the Little Sisters send to the TPA. I think the regulations could be rewritten to work in the way I described in my three points, but there may be some basis for the Sisters complaint until that is done. The regulations say:

(b) In the case of a self-insured group health plan established or maintained by an eligible organization, as defined in §2590.715-2713A(a) of this chapter, the copy of the self-certification provided by the eligible organization to a third party administrator (including notice of the eligible organization's refusal to administer or fund contraceptive benefits) in accordance with §2590.715-2713A(b)(1)(ii) of this chapter shall be an instrument under which the plan is operated, shall be treated as a designation of the third party administrator as the plan administrator under section 3(16) of ERISA for any contraceptive services required to be covered under §2590.715-2713(a)(1)(iv) of this chapter to which the eligible organization objects on religious grounds, and shall supersede any earlier designation. A third party administrator that becomes a plan administrator pursuant to this section shall be responsible for—

(1) The plan's compliance with section 2713 of the Public Health Service Act (42 U.S.C. 300gg-13) (as incorporated into section 715 of ERISA) and §2590.715-2713 of this chapter with respect to coverage of contraceptive services. To the extent that the plan contracts with different third party administrators for different classifications of benefits (such as prescription drug benefits versus inpatient and outpatient benefits), each third party administrator is responsible for providing contraceptive coverage that complies with section 2713 of the Public Health Service Act (as incorporated into section 715 of ERISA) and §2590.715-2713 of this chapter with respect to the classification or classifications of benefits subject to its contract.

(2) Establishing and operating a procedure for determining such claims for contraceptive services in accordance with §2560.503-1 of this chapter.

(3) Complying with disclosure and other requirements applicable to group health plans under Title I of ERISA with respect to such benefits.

The ERISA exemption only applies to a relatively small number of self-insured plans that have a religious organization as its TPA; however the issue of whether, by signing the certification form, the employer is authorizing the TPA to provide contraception on the government's dollar will apply to any Catholic hospital, university, charity, etc that has a self-insured plan.

Thanks for defending the Little Sisters. They are special. Would you know if they're represented in the LCWR? (I couldn't find the answer on the net.) I fear they're rather naive about some things and that the Becket people are taking advantage of their deserved great reputation.

"The Little Sisters and others say instead that signing the form is a "permission slip" that means they authorize someone else to undertake an immoral action, which would make the nuns culpable."

Without wading through what others have said, my point is this: each and every paycheck that the LSOP give to their employees is a "permission slip" to do what ever they want with the money: contracep, abort, drink, do drugs, keep a girl/boy friend on the side.

The Little Sisters of the Poor are members of the Council of Major Superiors of Women Religious (CMSWR est. in 1992), an association of communities disillusioned with the goals and focus of the Leadership Council of Women Religious (LCWR est. under a different name in 1959). They are listed on the CMSWR website.

There are a few communities that have dual membership. The LCWR do not list their membership but I doubt that the Little Sisters of the Poor are members of the LCWR.

Jim McCrae, It isn't loco parentis. It's another Latin phrase, Cuius regio, eius religio -- "Whose realm, whose religion." In the 16th Century it meant the ruler determined the religious affiliation of his subjects. Today, if the Becket Fund is to be believed, it means that the employer determines the religious morality of those who work for him.

If the Little Sisters win, there should be no logical objection to extending the religious veto to wage and hour laws and other government-imposed inconveniences to the "job creators." After all, the religious claim can be made on behalf of that all-American god, the almighty dollar.

Let's suppose that I have a religious objection to serving on a jury in a criminal case, because I believe that it is God's place and no one else's to judge human beings. If I receive a summons to jury duty, what are my options?

I may say nothing, serve on the jury, and thus violate my conscience.

I may ask for a waiver based on religious grounds. If it is not granted, I will either serve and violate my conscience, or suffer the heavy hand of government in the form of a penalty. In that last case, as well as when the waiver is granted, I will not serve, but another person will take my place, and I will have caused that person to do something that I consider sinful, thus violating my conscience.

I may ask a court to enjoin the jury administrators from summoning me at all without saying anything about my religious belief. But if successful, I would again be causing my replacement to engage in what I consider sinful behavior.

My only conscientious action, it seems, the only way to safeguard my religious freedom and preserve my conscience, will be to ask a court to summon no one and to dismantle the entire criminal justice system in the jurisdiction that has summoned me. Still, that might leave me a little uneasy about contributing, howbeit with the best of motives, to a rise in crime.

I don't see a parallel with counseling against abortion in Germany.In that case the church is BROUGHT in to counsel as a first step to the abortion.That is a true pipe line.That's akin to bringing in a medical doctor at a execution or in gitmo or cia blacksite where people were being tortured.There Cardinal Ratzinger was right to reject this collaboration.It was not about remaining morally pure but about holding a sign; this way to the abortuary[ovens?],a rubber stamp.With the nuns it s about the fact that the employer who freely hired lay workers has a moral and now legal obligation to insure their health coverage. This is intrinsicaly good.The evil aspects of this coverage ,contraception and abortion are unfortunately included as part of health insurance. The nuns have been granted a religious exemption from having to provide coverage for what we deem as evil.This ratifies the exemption which is all that the nuns have a right to expect as they can't control their employees who they chose to hire and who have the same rights as other employees.

1) The government needs the nuns to sign this form to start their regulatory process. Without the signed form they are only able to assess monetary penalties if the nuns provide a healthcare plan without the required contraceptive and abortive (IUD and plan B) and the employees wont receive those benefits. So the process in the case of plan B and IUD's produces the exact same result as in Germany and the nuns are a required part of the process.

2) While health care might be intrinsically good, employer provided healthcare is only one choice amoung many. The nuns could simply pay the penalty to the government for not providing healthcare and then increase their employees salaries by some amount and leave the decision to purchase healthcare to them.

3) The nuns have not been provided an exemption; they have been provided an accomodation. The exempt institutions, like churches, do not need to sign any form.

Btw, healthy women between adolescence and menopause are fertile and those who infertile need care to regain their fertility. Its an oxymoron to call making oneself infertile or killing the new human life within you healthcare.

The regulatory process was started by the nuns in their hiring of lay people who have a legal and just right to health care.The employees, once hired by the nuns are entitled to health insurance provided by their employer.The nuns are exempt but their employees are not them and may not have the same objections the nuns have. The employees are not extensions of the nuns but people in their own right who are entited to the same treatment under the law as other workers. Hence they should not have to go on the exchanges. The accommodation recognizes both facts;the nuns exempt status and the rights of their employees to have their insurance provided for by the employer.The nuns are wearing two hats here;that was their choice.I agree wholeheartedly with you that neither contraception or abortion should be provided for by the government.Abortion should be outlawed and contaception is not usually medical care.If the nuns want to engage in civil disobedience then we'll see where that leads.

Has anyone reported on exactly WHO is funding or underwriting the legal fees of the Little Sisters of the Poor?

I'm only speculating, but I wouldn't be surprised if some right-wing Obama-hating group, or some insurance company, has picked-up the court costs and legal fees for the LSotP pro bono - especially since David Gibson has so clearly drawn how obtuse the legal arguments of the LSotP attorneys.

With the Little Sisters of the Poor as a front, these anonymous attack groups get to try to continue to muck-up the works for the ACA.